Ohio High Court Voids Gay-Only Proposition Ban

Columbus—The Ohio Supreme Court has unanimously
struck down the state’s unique "importuning" law, which outlaws
asking someone of the same gender for sex if it might offend them.

The court ruled May 15 that the measure violates federal and state equal
protection guarantees. It does not apply to heterosexual situations. The law
is used mostly in park sex stings, where plainclothes police officers charge
men with importuning when they respond to overtures from the officers.

"No person shall solicit a person of the same sex to engage in sexual
activity with the offender," reads Ohio Revised Code 2907.07(B),
"when the offender knows such solicitation is offensive to the other
person, or is reckless in that regard."

The measure was passed in 1972 as part of an overhaul of the criminal code
that also repealed Ohio"s sodomy law.

The case involved Eric R. Thompson of Jefferson, Ohio. In July, 1999,
Thompson was arrested for offering sex to another man, who called police. He
was found guilty and served six months in prison.

The Eleventh District Court of Appeals in Warren upheld the law last year,
but requested that the Ohio Supreme Court clarify an earlier ruling in favor
of it.

The high court now says the law "is facially invalid as a
content-based restriction on speech."

"The state has not narrowly tailored [the statute] to serve a
compelling state interest," wrote Justice Deborah L. Cook in her decision
for the court. "Curtailing the risk of violent responses to offensive
solicitation [the rationale behind the statute]—as opposed to prohibiting
offensive sexual solicitations of a particular content—could have been
achieved by prohibiting all offensive solicitations of sexual activity."

Justice Paul E. Pfeifer, while agreeing with the decision, disagreed with
the reasoning behind it.

"There is no rational reason for the state to treat people who seek to
engage in homosexual activity as criminals when it does not treat people who
seek to engage in heterosexual activity as criminals," Pfeifer said in
his concurring opinion.

"The obvious intent of [the statute] is to restrict homosexual
activity, not speech, as the lead opinion would have us believe," he
continued, noting that the probation of "the solicitation of another
person to engage in sexual activity for hire is to restrict prostitution, not
speech."

A similar case in Cleveland echoed Pfeifer"s sentiments. A three-judge
panel of the Eighth District Court of Appeals ruled unanimously last September
13 that the law was unconstitutional.

"Society has changed," Judge Colleen Conway Cooney wrote in her
decision for the Eighth District court. "There is simply no rational
basis for burdening homosexuals with greater criminal liability for conduct
which, if heterosexual in nature, would be subject to lesser punishment."
The city did not appeal the decision.

Ashtabula County public defender Marie Lane was excited at her client
Thompson"s victory. "I don"t know what to say," she noted.
"I"m thrilled." She also expressed surprise at Pfeifer’s
opinion, saying that his questioning was severe during oral arguments earlier
this year.

Linda Malicki, executive director of the Cleveland Lesbian-Gay Center, was
also pleased with the ruling.

"The center is thrilled that this law, which clearly discriminates
against people based on sexual orientation and gender, has been struck
down," she noted.